Case J18

Members: JL Burke Ch

RE O'Neill M
CF Fairleigh QC

Tribunal:
No. 1 Board of Review

Decision date: 13 April 1977.

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R.E. O'Neill (Member): In my opinion the sums amounting to $8,500 paid by the solicitor, S, to the taxpayer during the year ended 30 June 1968 have been properly brought into his assessable income. I have no doubt at all that the amount of $8,500, being part of the sum of $10,000 which S agreed to pay to the taxpayer (the balance of $1,500 was paid by S in the year ended 30 June 1969), must be brought to account as being a revenue item. Upon consideration of the judgment of Stephen J. in
A.C. Williams v. F.C. of T. 72 ATC 4157 at pp. 4165-4167; (1972) 128 C.L.R. 645 at pp. 652-654 I think that the applicable statutory provision is not sec. 25(1), but is the second limb of sec. 26(a) which brings into assessable income profit arising ``from the carrying on or carrying out of any profit-making undertaking or scheme''. The facts do raise a difficulty as to when the sum of $8,500 ought to be brought to account in the ascertainment of the ``profit arising'' from the taxpayer's profit-making undertaking or scheme, but the terms of taxpayer's objection do not put that matter in issue and it cannot be pursued - see
Brown v. F.C. of T. (1956) Q.S.R. 612 . The Commissioner's decision on the taxpayer's objection must, I think, be upheld.